97 F. Supp. 790 | E.D. La. | 1951
This is a proceeding under the Federal Food, Drug & Cosmetic Act, 21 U.S.C.A. § 301 et seq., seeking condemnation of 1,000' bags of coffee beans, in their green state, introduced into this country from Rio de Janeiro, Brazil, through the port of New Orleans on or about July 11, 1949. Five Hundred bags of the green coffee were-stored and have remained at a warehouse-in the City of New Orleans and within the-Eastern District of Louisiana. The remaining 500 bags, on or about August 11, 1949, wére shipped by rail to St. Louis, Missouri, where same have been located: since such date.
It appears conclusively that a substantial percentage of the coffee beans contain burrowings and holes made by insects, insect excreta and bodies or portions of bodies of the dead insects. A number of qualified analysts who have tested samples of the coffee have so testified. Likewise the insect infestation was manifest from an examination of samples offered and received in evidence. I find that the coffee was and is adulterated, within the meaning of 21 U.S.C.A. § 331. I do not think that the Claimant seriously contends to the contrary.
Claimant contends very vigorously, however, that this coffee, by reason of the fact that it is in its green state and will be roasted and ground before offered for sale to the consuming public, was not a “food”, as that term is defined in Section 321(f),
Despite the fact that the last cited District Court opinion seems to be clearly in point, I cannot agree. The Claimant has offered testimony to show (and I think I might well take knowledge of the fact) that green coffee beans rarely, if ever, are sold at this time directly to the consuming public; that after coffee is roasted some quantities are sold directly to the consuming public, who may grind their own, but that a vast majority of all coffee sold to the consumer is ground and ready for use for making coffee.
It is my opinion that the fact that the green coffee beans must undergo certain processing before being sold to the consuming public does not exclude them from the statutory definition. U. S. v. 52 Drums Maple Syrup, 2 Cir., 110 F.2d 914. At the trial it was suggested that the roasting process, during which the bean is heated to a high temperature, might destroy the objectionable matter contained in these beans, but there is not sufficient evidence upon which I could make such finding. Shortly prior to the trial, I permitted withdrawal of substantial samples of the beans to permit the Claimant and representatives of the Government to roast and process the coffee. Neither side has offered evidence of the result, but counsel for the Claimant has advised me informally that at least some of the objectionable matter was present after the roasting process. Claimant further contends that despite the fact that the coffee long since has passed from the control of customs officials and lias been released and delivered to the consignee, it should be permitted to re-export the coffee back to the country of its origin, or elsewhere. While this would appear to me to be an intelligent solution of the problem, it seems to be precluded by 230 Boxes of Fish v. U. S., 6 Cir., 168 F.2d 361.
I think the United States is entitled to its decree of condemnation.
. 21 U.S.C.A. § 321(f): “The term ‘food’ means (1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles used for components of any such article.”
